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Youngblood v. State

Defense counsel was deficient for failing to challenge the validity of defendant's indictment for aggravated assault which did not allege that the instruments he used to assault the victim were either deadly weapons or when use offensively resulted in or were likely to result in serious bodily injury.

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A Fulton County jury convicted Tilford Youngblood of three counts of battery, OCGA § 16-5-23.1 a, and aggravated assault, OCGA § 16-5-21 a 2, arising out of the April 6, 1998, attack on his girlfriend. Counts 1 through 3 of Youngblood’s indictment alleged aggravated battery; Count 4 alleged aggravated assault. On Counts 1 through 3, the jury found Youngblood guilty of the lesser-included offense of battery. The trial court merged the battery convictions into the greater offense, Count 4, aggravated assault, and sentenced Youngblood to 15 years imprisonment. In this second appearance of this case before us,1 Youngblood contends the trial court erred in denying his motion for new trial on several grounds. We affirm his battery convictions and remand this case to the court below for sentencing on those convictions. However, because Youngblood was denied the effective assistance of counsel with respect to his aggravated assault conviction, it must be reversed.

1. Youngblood contends the trial court lacked jurisdiction to entertain his motion for new trial because at the time his motion was heard, the remittitur had not been returned. A trial court lacks “jurisdiction to take any action in a case prior to receiving the remittitur from the appellate court.” Chambers v. State, 262 Ga. 200 415 SE2d 643 1992. On June 8, 2001, this Court remanded this case to the trial court to resolve Youngblood’s then pending motion for new trial. On June 14, 2001, the trial court entered an order denying Youngblood’s motion. On June 27, 2001, Youngblood filed his notice of appeal.

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